But not all discrimination is bad,” Feldblum points out.In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say ‘the only question is can they type’ even if they can type really quickly.” To get to the point where the law prohibits discrimination, Feldblum says, “there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do.
For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage.
Sure, we don’t arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities.
“It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to ‘be’ gay, but not necessarily okay to engage in gay sex. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.
“You have to stop, think, and justify the burden each time,” says Feldblum. “Respect doesn’t mean that the religious person should prevail in the right to discriminate–it just means demonstrating a respectful awareness of the religious position.” Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community.
They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that’s pretty close to the world in which they live now.